Daughters Have Coparcenery Rights Even If Their Father Was Not Alive When Hindu Succession (Amendment) Act, 2005 Came Into Force: SC

READ JUDGMENT

In a significant judgment, the Supreme Court has held that a daughter will have a share after Hindu Succession (Amendment) Act, 2005, irrespective of whether her father was alive or not at the time of the amendment.

Justice Arun Mishra today pronounced the judgment in a batch of appeals that raised an important legal issue whether the Hindu Succession (Amendment) Act, 2005, which gave equal rights to daughters in ancestral property, has a retrospective effect?

"Daughters must be given equal rights as sons, Daughter remains a loving daughter throughout life. The daughter shall remain a coparcener throughout life, irrespective of whether her father is alive or not", Justice Mishra said while pronouncing the judgment today. The bench also comprising of Justices S. Abdul Nazeer and MR Shah, overruled the contrary observations made in Prakash v. Phulavati and Mangammal v. T.B. Raju. The court held as follows:

1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer the status of coparcener on the daughter born before or after amendment in the same manner as a son with the same rights and liabilities.

2. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December 2004.

3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

4. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of the coparcenary. The fiction was only for the purpose of ascertaining the share of deceased coparcener when he was survived by a female heir, of Class ­I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given a share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

5 In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.